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WaPo Says It’s Breaking News That They’ve Been Duped by Latest Trump-Bannon Lie

July 9, 2022/60 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The Washington Post treats as BREAKING NEWS that they’ve been duped by the latest Trump-Bannon lie — in this case, that the reason Steve Bannon blew off the January 6 Committee is because Trump invoked Executive Privilege.

Former President Donald Trump is considering [1] sending a letter to Stephen K. Bannon saying that he is waiving his claim of executive privilege, potentially clearing the way for his former chief strategist to testify before the House select committee investigating the pro-Trump riot at the Capitol. [2]

The letter would reiterate [3] that Trump invoked executive privilege in September 2021, when Bannon was first subpoenaed by the House committee. But it would say that the former president is now willing to give up that claim — the validity of which has been disputed [4] — if Bannon can reach an agreement on the terms of an appearance before the panel. The letter was described by three people familiar with it, who spoke on the condition of anonymity because of the matter’s sensitivity.

Some advisers were seeking to talk Trump out of signing the letter. [5]

Let’s start with claim 1 and 5. This BREAKING story is about a letter … that Trump has not signed and may not sign.

Which means it’s not so much a news story as an intervention, presumably by the “some advisers” trying to convince Trump not to sign this.

But even if the letter had been signed, it would be news primarily because it was a lie, not because — as asserted in claim 2 — it “clear[ed] the way for his former chief strategist [sic]” to testify. One way three named journalists (or perhaps two, plus WaPo’s Mar-a-Lago stenographer) might figure out that claim 2 is false is by looking at the subpoena to Bannon, which among other things asked for any references he made to the insurrection on his podcasts, something which (even his attorney Robert Costello conceded) could not be covered by any claim of privilege.

In fact, Costello conceded that seven of seventeen things included in the subpoena could not be covered by any Executive Privilege invocation.

Those same journalists plus Mar-a-Lago stenographer might also refer to the letter that Trump’s attorney, Justin Clark, sent Costello, which among other things acknowledges that the subpoena calls for records and testimony,

including but not limited to information which is potentially protected from disclosure by the executive and other privileges, including among others the presidential communications, deliberative process, and attorney-client privileges.

That’s a far cry from invoking Executive Privilege over the things that might actually be privileged, and it concedes that not all potentially privileged materials are covered by Executive Privilege and further concedes the subpoena is “not limited” to information that might be privileged. So even if Bannon’s decision to blow off the Committee was entirely guided by that letter, it would be inaccurate to say Trump properly invoked Executive Privilege or that Executive Privilege was the only issue.

That’s pertinent because among other things these bozos wanted to do was claim attorney-client privilege over meetings between non-attorney Mike Flynn and non-attorney Bannon.

The journalists plus Mar-a-Lago stenographer might also check out the two emails that Clark sent Costello, which made it clear that his instructions didn’t go beyond that ambivalent letter, and sure as hell didn’t give him immunity from showing up and answering questions, which is (contra to what the WaPo claims) what distinguishes Bannon from Mark Meadows and Dan Scavino, on whose behalf Trump did claim immunity from testifying, valid or not.

And not to be persnickety, but even if claim 2 — that Trump had invoked Executive Privilege — were true, all those communications got sent in October, not September.

Claim 4? That alleged dispute about Trump’s claims of Executive privilege? If anyone is disputing that it’s not valid, they’re defying the ruling of the Supreme Court, which is about as undisputed as one can get.

The entire premise of this story is wrong. But because the WaPo accepted several false premises, it served as cover for an excuse for Bannon to change his mind about testifying before the Committee before his trial starts in less than two weeks.

It is rather interesting that Bannon, possibly in coordination with Trump, is reconsidering his willingness to go to jail to obstruct the Committee. Perhaps, as happened in similar fashion in 2018, Trump wants to script Bannon to give false claims to the Committee, partly in an effort to learn what the Committee knows. Perhaps Bannon would simply show up and do what Mike Flynn and Roger Stone did, plead the Fifth to everything — including, in Flynn’s case, whether he believes in the peaceful transfer of power.

A report on which of those things were going on would make an interesting news story.

But the WaPo isn’t reporting on the game that Trump and Bannon are playing. Instead, they are being gamed.

Robert Costello Reveals He Was Working for Steve Bannon a Year before He Was Publicly Hired

July 8, 2022/63 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

After belatedly joining Steve Bannon’s defense team as DOJ was collecting evidence about whether his claims matched the available evidence, Robert Costello is now asking to withdraw, citing a concern — one DOJ raised in a phone call on December 2, the same day he filed his notice of appearance — that he might have to serve as a witness.

The decision to withdraw just days before trial is interesting in any case.

All the more so given Costello’s claim that he has represented Bannon for the past three years.

Maybe he has … maybe he has!

Curiously, though, that conflicts with the known timeline of how his relationship with Bannon came about. You’ll recall that until November 6, 2020, Bannon was ably represented — through a serially evolving story in the Mueller investigation — by Bill Burck. But then, on November 5, 2020, Bannon threatened to behead the FBI Director and the COVID Czar.

So Burck essentially fired Bannon. According to Burck’s court filing, Bannon was, at that point, hiring new counsel.

A month later, on December 11, 2020, at a time when according to public reports, Trump was offering pardons to those, like Bannon, implicated in the Build the Wall fraud, in exchange to those who helped his coup attempt, Costello filed his notice of appearance for Bannon — at least by context, he was the new counsel.

Maybe my math is off, but December 11, 2020 is less than three years ago — less than two, even!!

All that said, Costello — who was implicated in the Mueller investigation for attempting to broker a pardon to keep Michael Cohen silent — was being hired by someone roughly three years ago, though it wasn’t Bannon. It was this guy, Rudy Giuliani, the guy through whom Costello had previously attempted to broker a pardon.

The legal representation of Trumpsters is always so incestuous it’s hard to tell where representation for one person begins and the other ends (as a reminder, Bannon’s other two lawyers either used to — David Schoen — or reportedly still do — Evan Corcoran — also represent Trump). But at least according to Costello’s filing, he’s been representing both Bannon and Rudy all this time.

Amid Claims of Witness Tampering, Revisiting Peter Navarro’s Alleged Contempt

July 1, 2022/97 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Last week, Steve Bannon engaged in a stunt, claiming that a Carl Nichols order requiring DOJ to provide official documents on things like executive privilege and testimonial immunity must cover DOJ’s declination decision with respect to Mark Meadows and Dan Scavino.

The stunt itself isn’t all that interesting.

Bannon claimed that he refused to testify in part on the same basis that Mark Meadows and Dan Scavino did, and so understanding how DOJ had distinguished them (whose prosecution DOJ declined) from him (who got charged) would reflect official policy.

The letters Trump lawyer Justin Clark sent to Meadows and Scavino made one difference clear, however (which the Bannon filing obliquely acknowledges). In instructing Meadows and Scavino to refuse to testify to the January 6 Committee as much as possible, Clark included language invoking testimonial immunity, on top of Executive Privilege.

Furthermore, President Trump believes that Mr. Meadows is immune from compelled congressional testimony on matters related to his official responsibilities. See Testimonial Immunity Before Congress of the Former Counsel to the President, [citing the Don McGahn OLC opinion]

The letter that Clark sent Bannon on the same day, October 6, had no such language on testimony immunity.

Indeed, after Robert Costello kept making claims about Trump instructing Bannon not to testify, Clark emailed him twice more, the first time to resend the same letter, and the second time to explicitly say that they didn’t think Bannon had testimonial immunity.

In light of press reports regarding your client I wanted to reach out. Just to reiterate, our letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.

Effectively, Trump’s team told Bannon to stall, but gave him no legal tools to do so. Bannon didn’t entirely ignore testimonial immunity. In a footnote, he accused Carl Nichols of misapplying the law with respect to immunity and privilege.

Finally, on this question, the Court’s oral Order of June 15, 2022, appears to indicate a view by the Court that Justin Clark’s view on the question of “immunity” is either relevant or somehow undercuts the invocation of executive privilege. It certainly is not relevant – immunity, unlike, executive privilege is not a legal concept for the President to invoke or confer and his view on “immunity” is of no consequence at all on the question of whether executive privilege was invoked. It was.

But he said the common invocation of Executive Privilege was itself enough to merit a more formal comparison (ignoring, of course, that Meadows provided some materials to the Committee that did not involve the President, whereas Bannon withheld even his public podcasts).

Though some of the news reports he cites name Peter Navarro, Bannon doesn’t invoke his case. In Navarro’s now-withdrawn lawsuit against the Committee, he invoked both testimonial immunity and Executive Privilege. But he cites no letter from Trump; instead, he relies on the same Don McGahn OLC opinion Bannon invoked in his filing. Of course, by the time Navarro was subpoenaed — February 9, as compared to the September 23 subpoenas for Bannon, Meadows, and Scavino (as well as Kash Patel) — SCOTUS had already ruled against Trump’s privilege claim.

So it may be that DOJ’s decision tree regarding charges looks like this:

Bannon’s filing may be a stunt, but he may be right that DOJ didn’t charge Meadows and Scavino because they could claim to have been covered by both Executive Privilege and testimonial immunity (and in Meadows’ case, even attempted to comply with non-privileged materials).

Given the evidence in Tuesday’s hearing that Trump and his associates continued to try to influence Cassidy Hutchinson’s testimony at least through March 7, I want to return to something I noted before: because Navarro didn’t lawyer up, whatever communications he exchanged with Trump’s lawyers would not be privileged.

After Bannon got indicted for contempt, DOJ obtained the call records for his lawyer, Robert Costello’s, communications going all the way back to when Costello’s previous representation of Bannon ended. If they did that with Navarro, they could get more than the call records, though.

Whatever else DOJ did with their charging decision, they also allowed themselves the greatest visibility into ongoing obstruction, while sustaining the case in chief.

Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

June 22, 2022/172 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

I find it harder to describe the details of yesterday’s January 6 Committee hearing, covering pressure Trump put on states to alter the vote, than the earlier hearings. That’s because the testimony about Trump’s bullying of those who upheld democracy — particularly election worker Shaye Moss and Arizona Speaker of the House Rusty Bowers — elicited so much emotion. This is what Trump has turned great swaths of the Republican Party into: bullies attacking those who defend democracy.

Trump’s bullies attacking anyone defending democracy

Bowers described how a mob, including an armed man wearing a 3%er militia patch, came to his house as his daughter fought a terminal illness.

Moss described how a mob descended on her granny’s house, hunting for her and her mother, Ruby Freeman. At least one member of the mob targeting those two Black women who chose to work elections betrayed self-awareness off their regressive stance: Moss testified that one of the threats targeted at her said, “Be glad it’s 2020 and not 1920.”

And Adam Schiff got Moss to explain a detail that formed the core of a video Rudy Giuliani used to summon his mob. Rudy had claimed that when Ms. Freeman passed Shaye something, it was a thumb drive to replace votes.

It was actually a ginger mint.

Schiff: In one of the videos we just watched, Mr. Giuliani accused you and your mother of passing some sort of USB drive to each other. What was your mom actually handing you on that video?

Moss: A ginger mint.

Moss testified that none of the people who had been working with her full time on elections in Fulton County, Georgia are still doing that work. They’ve all been bullied out of working to uphold democracy.

Tying the state violence to the January 6 violence

Early in the hearing, Schiff tied these threats of violence to Stop the Steal, the organization behind the purported speakers that formed the excuse to bring mobs to the January 6 attack. He explained, “As we will show, the President’s supporters heard the former President’s claims of fraud and the false allegations he made against state and local officials as a call to action.” Shortly thereafter, investigative counsel Josh Roselman showed a video from Ali Alexander predicting at a protest in November 2020, “we’ll light the whole shit on fire.”

Much later in the hearing, Schiff tied the takeover of state capitals to the January 6 riot with a picture of Jacob Chansley invading Capitols in both AZ and DC.

Chansley already pled guilty to attempting to obstruct the vote certification, and one of the overt acts he took was to leave Mike Pence this threatening note on the dais.

So one thing the hearing yesterday did was to tie the threats of violence in the states to the expressions of violence on January 6.

Showing obstruction of the vote certification, including documents

A second video described the fake electors scheme, developing several pieces of evidence that may help DOJ tie all this together in conspiracy charges.

The video included testimony from Ronna McDaniel acknowledging the RNC’s involvement. (Remember that McDaniel joined in the effort to censure Liz Cheney when she learned the committee had subpoenaed Kathy Berden, the lead Michigander on that fake certificate; Berden has close ties to McDaniel.)

Essentially he turned the call over to Mr. Eastman who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the states. I think more just helping them reach out and assemble them. But the — my understanding is the campaign did take the lead and we just were … helping them in that role.

The video also cited Trump’s own campaign lawyers (including Justin Clark, who represented Trump in conjunction with Steve Bannon’s refusal to testify) describing that they didn’t believe the fake electors scheme was prudent if the campaign no longer had legal challenges in a given state.

In a videotaped deposition, former campaign staffer Robert Sinners described himself and other workers as, “useful idiots or rubes at that point.” When ask how he felt upon learning that Clark and Matt Morgan and other lawyers had concerns about the fake electors, Sinners explained, “I’m angry because I think in a sense, no one really cared if … if people were potentially putting themselves in jeopardy.” He went on, “I absolutely would not have” continued to participate, “had I known that the three main lawyers for the campaign that I’ve spoken to in the past and leading up were not on board.”

And electors in individual states claimed to have been duped into participating, too. Wisconsin Republican Party Chair Andrew Hitt described that, “I was told that these would only count if a court ruled in our favor.” So using them as an excuse to make challenges on January 6, “would have been using our electors, well, it would have been using our electors in ways that we weren’t told about and we wouldn’t have supported.”

In the wake of yesterday’s hearing, one of MI’s fake electors, Michele Lundgren, texted reporters to claim that they had not been permitted to read the first page of the form they signed, which made the false claims.

As the video showed the fake certificates next to the real ones, Investigative Counsel Casey Lucier explained that,

At the request of the Trump campaign, the electors from these battleground states signed documents falsely asserting that they were the duly elected electors from their state, and submitted them to the National Archives and to Vice President Pence in his capacity as President of the Senate.

[snip]

But these ballots had no legal effect. In an email produced to the Select Committee, Dr. Eastman told a Trump campaign representative [Boris Epshteyn] that it did not matter that the electors had not been approved by a state authority. Quote, the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. He urged that Pence act boldly and be challenged.

Documents produced to the Select Committee show that the Trump campaign took steps to ensure that the physical copies of the fake electors’ electoral votes from two states were delivered to Washington for January 6. Text messages exchanged between Republican Party officials in Wisconsin show that on January 4, the Trump campaign asked for someone to fly their fake electors documents to Washington.

A staffer for Wisconsin Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the Joint Session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President the fake electors votes from Michigan and Wisconsin. The Vice President’s aide unambiguously instructed them not to deliver the fake votes to the Vice President.

Lucier made it clear, though, that these fake electors were delivered to both Congress (Johnson) and the Executive Branch (the Archives).

This video lays out critical steps in a conspiracy to obstruct the vote certification, one that — because it involves a corrupt act with respect to fraudulent documents — would even meet Judge Carl Nichols’ standard for obstruction under 18 USC 1512(c)(2).

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

Understand, many of these people are awful and complicit (and bmaz will surely be by shortly to talk about what an asshole Rusty Bowers is). But with respect to the fake electors scheme, the Committee has teed up a parade of witnesses who recognize their own criminal exposure, and who are, as a result, already rushing to blame Trump for all of it. We know DOJ has been subpoenaing them for evidence about the lawyers involved — not just Rudy and Eastman, but also Justin Clark.

DOJ has also been asking about Boris Epshteyn. He showed up as the recipient of an email from Eastman explaining that it didn’t matter that the electors had no legal legitimacy.

As Kyle Cheney noted, the Committee released that email last month, albeit with Epshteyn’s name redacted.

The Republican Party has not just an incentive, but a existential need at this point, to blame Trump’s people for all of this, and it may do wonders not just for obtaining cooperative and cooperating witnesses, but also to change how Republicans view the January 6 investigation.

Exposing Pat Cipollone’s exceptional unwillingness to testify

Liz Cheney continued to use the hearings to shame those who aren’t cooperating with the Committee. In her opening statement, she played the video of Gabriel Sterling warning of violence, where he said, “All of you who have not said a damn word [about the threats and false claims] are complicit in this.”

Then after Schiff talked about the threat to democracy in his closing statement …

We have been blessed beyond measure to live in the world’s greatest democracy. That is a legacy to be proud of and to cherish. But it is not one to be taken for granted. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong and armed with no more than the power of our ideas and the truth, carry on this venerable experiment in self-governance.

Cheney focused on the important part played by witnesses who did what they needed to guard the Constitution, twice invoking God.

We’ve been reminded that we’re a nation of laws and we’ve been reminded by you and by Speaker Bowers and Secretary of State Raffensperger, Mr. Sterling, that our institutions don’t defend themselves. Individuals do that. And we’ve [been] reminded that it takes public servants. It takes people who have made a commitment to our system to defend our system. We have also been reminded what it means to take an oath, under God, to the Constitution. What it means to defend the Constitution. And we were reminded by Speaker Bowers that our Constitution is indeed a divinely inspired document.

That set up a marked contrast with the list of scofflaws who’ve obstructed the Committee.

To date more than 30 witnesses called before this Committee have not done what you’ve done but have invoked their Fifth Amendment rights against self-incrimination. Roger Stone took the Fifth. General Michael Flynn took the Fifth. John Eastman took the Fifth. Others like Steve Bannon and Peter Navarro simply refused to comply with lawful subpoenas. And they have been indicted. Mark Meadows has hidden behind President Trump’s claims of Executive Privilege and immunity from subpoena. We’re engaged now in litigation with Mr. Meadows.

Having set up that contrast, Congresswoman Cheney then spent the entire rest of her closing statement shaming Pat Cipollone for refusing thus far to testify.

The American people in our hearings have heard from Bill Barr, Jeff Rosen, Richard Donoghue, and many others who stood up and did what is right. And they will hear more of that testimony soon.

But the American people have not yet heard from Mr. Trump’s former White House counsel, Pat Cipollone. Our Committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump’s plans for January 6.

Today and in our coming hearings, you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did, including on January 6.

But we think the American people deserve to hear from Mr. Cipollone personally. He should appear before this Committee. And we are working to secure his testimony.

In the wake of this, someone “close to Cipollone” ran to Maggie Haberman and sold her a bullshit story, which she dutifully parroted uncritically.

Cheney had just laid out that the “institutional concerns” had been waived by other lawyers (and were, legally, in the case of Bill Clinton). And any privilege issue went out the window when Sean Hannity learned of the White House Counsel complaints. Plus, White House Counsel lawyer Eric Herschmann has testified at length, including about matters — such as the call Trump made to Vice President Pence shortly before the riot — involving Trump personally.

Given Cheney’s invocation of those who pled the Fifth, I wonder she suspects that Cipollone’s reluctance has less to do with his claimed excuses, and more to do with a concern that he has personal exposure.

He may! After all, he presided over Trump’s use of pardons to pay off several key players in the insurrection, including three of the people Cheney invoked to set up this contrast: Flynn, Stone, and Bannon (though I suspect Cipollone had checked out before the last of them). And these pardons — and the role of pardons in the planning for January 6 more broadly — may expose those involved, potentially including Cipollone, in the conspiracy.

Whether or not Cheney shames Cipollone into testifying, including with her appeal to religion, he may not have the same luxury of refusing when DOJ comes calling.

House January 6 Committee: Public Hearings – Day 1 [UPDATE-1]

June 9, 2022/262 Comments/in 2020 Presidential Election, Congress, January 6 Insurrection, Trump Administration /by Rayne

[NB: Any updates will be published at the bottom of this post. /~Rayne]

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 9, 2022, at 8:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: https://www.youtube.com/watch?v=hZ0yNe3cFx4

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520282-1/open-testimony-january-6-committee

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1533876297926991877

MSNBC will carry coverage on their cable network with coverage beginning at 7:00 p.m. ET as well as on MSNBC’s Maddow Show podcast feed. Details at this link.

ABC, NBC, CBS will carry the hearings live on broadcast and CNN will carry on its cable network.

Fox News is not carrying this on their main network. Their weeknight programming including Tucker Carlson’s screed will continue as usual and will likely carry counterprogramming.

Twitter accounts live tweeting the hearing tonight:

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1535034512639512576

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1535050143879266306

Chris Geidner-Grid News: https://twitter.com/chrisgeidner/status/1535052708922937345

JustSecurity’s team live tweeting: https://twitter.com/just_security/status/1534955708881457154

If you know of any other credible source tweeting the coverage, please share a link in comments.

Marcy will not be live tweeting as the hearing begins 2:00 a.m. IST/1:00 a.m. UTC/GMT. She’ll have a post Friday morning Eastern Time. Do make sure to read her hearing prep post, though.

An agenda for this evening’s hearing has not been published on the committee’s website.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the evening progresses.

Again, this post is dedicated to the House January 6 Committee and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

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~ ~ ~

UPDATE-1 — 7:30 P.M. ET 10-JUN-2022 —

According to Scott MacFarlane-CBS there will be a total of six House J6 Committee hearings this month.

House J6 Committee hearing schedule (as of eve 6/10/2022):

Monday June 13 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Wednesday June 15 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Thursday June 16 — Hearing: On the January 6th Investigation
1:00 PM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Tuesday June 21 — Hearing: On the January 6th Investigation
**10:00 AM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Thursday June 23 — Hearing: On the January 6th Investigation
**8:00 PM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Date, time, and location of the next three hearings have been published on the U.S. House of Representatives’ calendar. The last two have not yet been confirmed and published.

Bannon’s One-Time Co-Conspirators Admit They Cheated Trump Supporters in the Conspiracy Trump Pardoned Bannon For

April 22, 2022/26 Comments/in 2020 Presidential Election, Financial Fraud /by emptywheel

Thus far, SDNY (which was busy arresting the former President of Honduras on drug-trafficking charges) has not yet posted the minutes of yesterday’s plea hearing for Brian Kolfage and Andrew Badolato, much less their plea agreements and statements of offense.

Here is Adam Klasfeld’s live-tweet of the hearing and his write-up.

Until those documents are posted, we’re left with varying press descriptions of men — with whom Steve Bannon was charged, until a last minute pardon from Trump got him off federal charges — who cheated a bunch of Trump supporters. Klasfeld’s headline gets to that relationship:

Two of Steve Bannon’s Former Co-Defendants Just Pleaded Guilty to Allegations He Dodged Through Trump’s Pardon

NYT led with Bannon’s pardon:

After Pardon for Bannon, 2 Admit Bilking Donors to Border Wall

In Donald J. Trump’s final hours as president in January 2021, he pardoned his onetime chief strategist, Stephen K. Bannon, who faced charges that he had conspired to swindle donors to a private group that promised to build a wall along the Mexican border.

But three men charged with Mr. Bannon were not pardoned, and two of them pleaded guilty on Thursday in Federal District Court in Manhattan.

The WaPo doesn’t even describe the crime in the headline,.

Disabled vet pleads guilty in border-wall scheme that included Bannon

WaPo describes Bannon’s involvement, and the allegation he personally cheated Trump supporters out of $1 million, this way.

“We Build the Wall” was a large-scale private crowdfunding effort orchestrated by Kolfage, Bannon, Andrew Badolato and Timothy Shea in 2018. Its stated goal was to help the federal government complete the coast-to-coast barrier President Donald Trump had repeatedly promised his supporters. The four men were arrested in August 2020, when prosecutors accused Bannon of personally pocketing more than $1 million.

Bannon, a far-right figure who was a key strategist in Trump’s 2016 campaign, followed Trump to the White House for a relatively short stint as an administration official.

Their relationship had not completely soured by the end of Trump’s presidency, and Bannon received a presidential pardon on the eve of Trump’s departure from the White House, part of a wave of more than 140 other clemency actions — including for Trump associates who were ensnared in the Justice Department’s probe into Russia’s interference in the 2016 election.

Here’s how CNN handles the guilty pleas and Bannon’s involvement:

Two of Bannon’s co-defendants plead guilty to ‘We Build the Wall’ fraud

[snip]

The men are accused by federal prosecutors of using hundreds of thousands of dollars donated to an online crowdfunding campaign called We Build the Wall for personal expenses, among other things.

Bannon, who pleaded not guilty and denied any wrongdoing, was pardoned by then-President Trump in his final days in office. The Manhattan district attorney’s office is investigating Bannon for the same conduct and whether it violated state law. The pardon only covered federal crimes.

Timothy Shea, a fourth man charged in the fundraising effort, has pleaded not guilty. Last month he indicated to the judge that he would plead guilty, but changed his mind and is set to go to trial next month.

Bannon and Kolfage promised donors that the campaign, which ultimately raised more than $25 million, was “a volunteer organization” and that “100% of the funds raised … will be used in the execution of our mission and purpose,” according to the indictment.

But instead, according to prosecutors, Bannon, through a nonprofit under his control, used more than $1 million from We Build the Wall to “secretly” pay Kolfage and cover hundreds of thousands of dollars in Bannon’s personal expenses.

The NYPost calls the men “fraudsters” in the headline and — in a caption to a Bannon photo — notes he “was involved in the swindling GoFundMe campaign.” To its credit, that may be the best summary of what happened.

It is, admittedly, difficult to get what happened legally into the story yet, much less in a headline. That’s because while Bannon’s acceptance of a pardon might be viewed as evidence of guilt, he has not himself admitted he cheated Trump’s supporters. Plus, he could still be at legal exposure himself. I noted in December when Bannon hired pardon broker Robert Costello that Bannon might still face NY State charges (in which prosecution his former co-defendants could testify against him). Even before Cy Vance left, he was pursuing that possibility.

Even ignoring the circumstances of Bannon’s pardon, this fraud goes to the core of Trump’s relationship with his followers. Bannon’s co-conspirator Kolfage admitted that he lied to donors, people so worked up over Trump’s fear-mongering over brown people that they donated their own money, in part so he could sustain his own posh lifestyle (something else the NYP with its emphasis on images highlighted). This scheme treated Trump’s enthusiastic supporters as targets to be cheated, rubes whose support for Trump could be easily exploited.

Steve Bannon sure understood the relationship Trump has with his supporters.

Now consider the circumstances of Bannon’s pardon.

Dustin Stockton and Jennifer Lawrence, who have shown a real willingness to testify to anyone who would listen, described how pardons for cheating Trump supporters were tied to a commitment to help Trump steal an election.

In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.

“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.

Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”

The hypothetical pardon for the two of them was tied to helping Trump fool his supporters into believing he was cheated out of a victory he had won. Stockton and Lawrence didn’t end up getting such a pardon (thus far, they haven’t needed one).

But Bannon — who played an as-yet unexplained role in convincing thousands of Trump supporters to commit crimes in service of this fraud — did get his pardon.

This fraud — where Trump allowed close associates to cheat his supporters, only to have Trump selectively pardon the single important person accused in the fraud in seeming exchange for his role in an even bigger fraud — perfectly captures Trump’s parasitic relationship with the cult he has created. It’s a pyramid scheme of abuse in which, thus far, the little guys at the bottom are the ones who pay the biggest price.

Trump not only doesn’t care that these people cheated his supporters, he’s willing to reward Bannon for helping him cheat them on still grander scale.

How we describe this pyramid scheme of abuse going forward is an important measure of the press’ ability to capture how Trump works. Thus far, Trump supporters have never rebelled against being used and cheated like this. Instead, they double down on their belief that Trump is the victim, rather than the con man victimizing them.

But yesterday, Brian Kolfage admitted that Trump supporters are the victims.

Steve Bannon’s “Alleged” Non-Contemptuous Behavior

April 19, 2022/72 Comments/in 2016 Presidential Election, 2020 Presidential Election, January 6 Insurrection, Mueller Probe /by emptywheel

On Friday, the two sides in the Steve Bannon contempt prosecution filed a bunch of motions about the scope of the case. They are:

Bannon’s 62-page Motion to Dismiss, primarily arguing that OLC memos mean he didn’t need to comply with Jan 6 Committee’s subpoena
DOJ’s motion in limine arguing that Bannon cannot introduce OLC memos because they didn’t apply to him
DOJ’s motion in limine arguing that Bannon cannot rely for his defense on issues he didn’t raise with the committee (some of which also appear in his MTD)
DOJ’s motion in limine arguing that Bannon can’t claim he has an “alleged” history of compliance with subpoenas

Office of Legal Counsel memos

The fight over OLC memos is likely to get the bulk of attention, possibly even from Judge Carl Nichols (who relied on one of the OLC memos at issue in the Harriet Miers case). While there’s no telling what a Clarence Thomas clerk might do, I view this fight as mostly tactical. One way for Bannon’s attempt to fail (Nichols improbably ruling that OLC memos cannot be relied on in court) would upend the entire way DOJ treats OLC memos. That might have salutary benefits in the long term, but in the short term it would expose anyone, like Vice President Dick Cheney, who had relied on OLC memos in the past to protect themselves from torture and illegal wiretapping exposure themselves.

In my opinion this challenge is, in part, a threat to Liz Cheney.

But as DOJ (I think correctly) argues, none of this should matter. That’s because — as they show with two exhibits — none of the OLC memos apply to Bannon, and not just because he was not a government employee when he was plotting a coup.

On October 6, 2021, Trump attorney Justin Clark wrote to Bannon attorney Robert Costello (citing no prior contact with Costello), instructing him not to comply to the extent permitted by law:

Therefore, to the fullest extent permitted by law, President Trump instructs Mr. Bannon to: (a) where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena; (b) not produce any documents concerning privileged material in response to the Subpoena; and (c) not provide any testimony concerning privileged material in response to the Subpoena.

But on October 14, Clark wrote and corrected Costello about claims he had made in a letter to Benny Thompson.

Bob–I just read your letter dated October 13, 2021 to Congressman Benny Thompson. In that letter you stated that “[a]s recently as today, counsel for President Trump, Justin Clark Esq., informed us that President Trump is exercising his executive privilege; therefore he has directed Mr. Bannon not to produce documents or testify until the issue of executive privilege is resolved.”

To be clear, in our conversation yesterday I simply reiterated the instruction from my letter to you dated October 6, 2021, and attached below.

Then again on October 16, Clark wrote Costello stating clearly that Bannon did not have immunity from testimony.

Bob–In light of press reports regarding your client I wanted to reach out. Just to reiterate, our letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.

In other words, before Bannon completely blew off the Committee, Trump’s lawyer had told him not to do it on Trump’s account. (See this post which captures how Robert Costello had tried to bullshit his way through this.) That, by itself, should kill any claim that he was relying on an OLC memo.

Bannon’s prior (alleged) non-contemptuous past behavior

For different reasons, I’m a bit more interested in DOJ’s attempt to prevent Bannon from talking about what a good, subpoena-obeying citizen he has been in the past. Costello had made this argument to DOJ in an interview Bannon is trying to get excluded.

DOJ argues, uncontroversially, that because Bannon’s character is not an element of the offense, such evidence of prior compliance with a subpoena would be irrelevant.

Just as the fact that a person did not rob a bank on one day is irrelevant to determining whether he robbed a bank on another, whether the Defendant complied with other subpoenas or requests for testimony—even those involving communications with the former President—is irrelevant to determining whether he unlawfully refused to comply with the Committee’s subpoena here.

I expect Judge Nichols will agree.

What I’m interested in, though, is the way the filing refers to Bannon’s past compliance with subpoenas as “alleged.” It does so nine times:

The Defendant has suggested that, because he (allegedly) was not contemptuous in the past, he is not a contemptuous person and was not, therefore, contemptuous here.

[snip]

Mr. Costello advised that the Defendant had testified once before the Special Counsel’s Office of Robert S. Mueller, III (the “SCO”), although Mr. Costello did not specify whether the pertinent appearance was before the grand jury or in some other context; once before the U.S. Senate Select Committee on Intelligence; and twice before the U.S. House of Representatives Permanent Select Committee on Intelligence. See id. Although, in his letter to the Committee and his interview, Mr. Costello said nothing about whether the Defendant was subpoenaed for documents by those authorities and whether the Defendant did produce any, and he did not say whether those other subpoenas or requests were limited to communications with the former President or involved other topics as well, the Defendant and Mr. Costello have asserted, essentially, that the Defendant’s alleged prior compliance demonstrates that he understands the process of navigating executive privilege, illustrates his willingness to comply with subpoenas involving communications with the former President, and rebuts evidence that his total noncompliance with the Committee’s subpoena was willful.

[snip]

The Defendant cannot defend the charges in this case by offering evidence of his experience with and alleged prior compliance with requests or subpoenas for information issued by Congress and the SCO.

[snip]

The Defendant’s alleged prior compliance with subpoenas or requests for information is of no consequence in determining whether he was contemptuous here.

[snip]

Specifically, the Defendant’s alleged compliance with other demands for testimony is not probative of his state of mind in failing to respond to the Committee’s subpoena, and his alleged non-contemptuous character is not an element of the contempt offenses charged in this case.

[snip]

1 1 To the extent the Defendant seeks to introduce evidence of his general character for law-abidingness, see In re Sealed Case, 352 F.3d 409, 412 (D.C. Cir. 2003), he cannot use evidence of his alleged prior subpoena compliance to do so. Evidence of “pertinent traits,” such as law-abidingness, only can be introduced through reputation or opinion testimony, not by evidence of specific acts. See Fed. R. Evid. 404(a)(2)(A); Fed. R. Evid. 405(a); Washington, 106 F.3d at 999.

[snip]

Second, whatever probative value the Defendant’s alleged prior compliance in other circumstances might serve, that value is substantially outweighed by the trial-within-a-trial it will prompt and the confusion it will inevitably cause the jury.

[snip]

The Defendant’s reliance on counsel and/or his alleged good faith in response to prior subpoenas is thus not pertinent to any available defense and is irrelevant to determining whether his failure to produce documents and appear for testimony in response to the Committee’s subpoena was willful. [my emphasis]

The reason DOJ always referred to Bannon’s past compliance with subpoenas as “alleged” is because calling the claim “bullshit” — which is what it is — would be unseemly in a DOJ filing.

As a reminder, here’s the history of Bannon’s “alleged” past compliance with subpoenas (it is unknown whether he was subpoenaed in the Build the Wall fraud investigation):

HPSCI: Bannon got subpoenaed after running his mouth off in the wake of the release of Fire and Fury (Republicans likely acceded to that so they could discipline Bannon for his brief and soon-aborted effort to distance himself from Trump). In his first appearance, Bannon refused to answer a bunch of questions. Then, in a second appearance and after the intervention of Devin Nunes, Bannon reeled off a bunch of “no” answers that had been scripted by Nunes and the White House, some of which amounted to misdirection and some of which probably were lies. Bannon also claimed that all relevant communications would have been turned over by the campaign, even though evidence submitted in the Roger Stone case showed that Bannon was hiding responsive — and very damning — communications on his personal email and devices.

SSCI: Bannon was referred in June 2019 by the Republican-led committee to DOJ for making false statements to the Committee.

According to the letter, the committee believed Bannon may have lied about his interactions with Erik Prince, a private security contractor; Rick Gerson, a hedge fund manager; and Kirill Dmitriev, the head of a Russian sovereign fund.

All were involved in closely scrutinized meetings in the Seychelles before Trump’s inauguration.

[snip]

No charges were filed in connection with the meetings. But investigators suspected that the men may have been seeking to arrange a clandestine back-channel between the incoming Trump administration and Moscow. It’s unclear from the committee’s letter what Bannon and Prince might have lied about, but he and Prince have told conflicting stories about the Seychelles meeting.

Prince said he returned to the United States and updated Bannon about his conversations; Bannon said that never happened, according to the special counsel’s office.

Mueller: Over the course of a year — starting in two long interviews in February 2018 where Bannon lied with abandon (including about whether any of his personal comms would contain relevant information), followed by an October 2018 interview where Bannon’s testimony came to more closely match the personal communications he had tried to hide, followed by a January 2019 interview prior to a grand jury appearance — Bannon slowly told Mueller a story that more closely approximated the truth — so much so that Roger Stone has been squealing about things Bannon told the grand jury (possibly including about a December 2016 meeting at which Stone appears to have tried to blackmail Trump) ever since. Here’s a post linking Bannon’s known interview records and some backup.

But then the DC US Attorney’s Office (in efforts likely overseen by people JP Cooney, who is an attorney of record on this case) subpoenaed Bannon in advance of the Stone trial, and in a preparatory interview, Bannon reneged on some of his testimony that had implicated Stone. At Stone’s trial, prosecutors used his grand jury transcript to force Bannon to adhere to his most truthful testimony, though he did so begrudgingly.

In other words, the record shows that Bannon has always been contemptuous, unless and until you gather so much evidence against him as to force him to blurt out some truths.

Which is why I find it curious that DOJ moved to exclude Bannon’s past contemptuousness, rather than moving to admit it as 404(b) evidence showing that, as a general rule, Bannon always acts contemptuously. His character, DOJ could have claimed, is one of deceit and contempt. The reason may be the same (that contempt is a one-time act in which only current state of mind matters).

But I’m also mindful of how the Mueller Report explained not prosecuting three people, one of whom is undoubtedly Bannon.

We also considered three other individuals interviewed — [redacted] — but do not address them here because they are involved in aspects of ongoing investigations or active prosecutions to which their statements to this Office may be relevant.

That is, one reason Bannon wasn’t prosecuted for lying to Mueller was because of his import in, at least, the ongoing Roger Stone prosecution. That explains why DOJ didn’t charge him in 2019, to retain the viability of his testimony against Stone. I’m interested in why they continue the same approach. It seems DOJ’s decision to treat Bannon’s past lies — even to SSCI! — as “alleged” rather than “criminally-referred” by SSCI, may also reflect ongoing equities in whatever Bannon told the the grand jury two years ago. One thing Bannon lied about at first, for example, was the back channel to Dubai that may get him named as a co-conspirator in the Tom Barrack prosecution.

But there were other truths that Bannon ultimately told that may make it worthwhile to avoid confirming that those truths only came after a whole bunch of lies.

Update: Thanks to Jason Kint for reminding me that Bannon refused to be served an FTC subpoena pertaining to Cambridge Analytica in 2019.

On EDNY’s Ongoing Investigation into Tom Barrack and His Not-Yet Indicted Co-Conspirators

April 6, 2022/67 Comments/in 2016 Presidential Election, Foreign Influence /by emptywheel

In a status hearing on March 21, prosecutors in the Tom Barrack case responded to a question Barrack had posed the day earlier — whether they planned to supersede his indictment — by saying they reserve the right to do so and that it might happen in June.

In a response to Barrack’s claims of discovery hold-ups yesterday, they elaborated on an ongoing investigation into Barrack — and “several” people identified as co-conspirators in the indictment but not yet charged.

The government has made several requests for materials from other executive components of the federal government, and upon receipt of these materials, will promptly disclose any additional items that are discoverable. Additionally, the investigation related to this case is ongoing (we note that one of the charged defendants is a fugitive and the indictment alleges conduct by several unindicted co-conspirators).

There’s at least one person (probably three) whose prior interviews with the FBI are described, but whose names are redacted.

On October 26, 2021, it advised the defendants of statements made by [redacted] during prior interviews with FBI special agents. The government made similar disclosures about statements by [redacted]. These disclosures were made on December 22, 2021, January 14, 2022, January 27, 2022, March 9, 2022 and April 5, 2022.

Defense counsel further requested the underlying notes and FD-302 reports related to the interviews of [redacted] whose discoverable information was previously disclosed to the defense.

It describes that DOJ obtained a good deal of new evidence in the last three months.

By early January 2022, less than six months since indictment, the government substantially completed the disclosure of discoverable material that was currently in its possession. The government has turned over additional material since that time— approximately 80,000 more files—but, with the exception of fewer than 20 files, all of that material came into the government’s possession after January 3, 2022

It describes evidence that, Barrack is sure, would be at Department of Commerce, State, and the White House.

The defendants note that the government “initially took the position that it had no obligation to search for discoverable materials from [other] federal agencies.” See Mot. at 3, 21. The government took and continues to take such a position, because it is legally correct. The defendants argue that the government has a legal obligation to obtain and review materials from other agencies3 because “this is a national security case” and Barrack has had contact with a number of different parts of the federal government. But a case’s status as “a national security case” is not a basis under any existing precedent to impute a duty to obtain and disclose materials held by other agencies.

3 The defendant fails to specify which agencies the prosecution team purportedly has a duty to search, other than to identify “the White House, State Department, Commerce Department and federal intelligence agencies” as examples that a duty to search should be “included but not limited to.” See Mot. at 22.

Even though the government doesn’t think they have to provide everything from those agencies and the White House, they are getting Trump White House documents from the Archives.

Accordingly, the government has requested White House materials from the National Archives and Records Administration and has also requested materials from the U.S. Department of State, U.S. Department of Treasury, U.S. Department of Energy, and U.S. Department of Commerce.5

5 As previously discussed, the prosecution team recently received and produced to defense counsel the responsive documents obtained from the U.S. Department of Commerce.

It describes that just because others received similar requests from the Emirates during the Transition or their time in the Administration as Barrack did, it does not make him less guilty.

Similarly, the defendants request information showing that the taskings Barrack carried out for the UAE “are common requests and were made to other members of the transition or administration.” Id. at 9 ¶ 12. This too is an argument, not an actual discovery request, and an irrelevant argument at that. Whether or not other individuals agreed to act at the direction or control of the UAE, or also met with U.S. officials on behalf of the UAE, does not make Barrack more or less guilty in agreeing to act as an unlawful agent of a foreign government.

In other words, since indicting Barrack, DOJ has continued the investigation, including by using materials that have become available since Trump left the White House.

Most of the people described as co-conspirators are Emiratis that the government wouldn’t risk charging.

But Trump officials are named too. Some of the people described in the indictment — most notably Paul Manafort, who recently found himself unable to fly to Dubai because his passport had been revoked — did things on which a 5-year statute of limitations has expired (though there’s a Barrack-related action Manafort took in 2017 that is not yet time-barred).

But that’s not true of the actions of Steve Bannon described in the indictment. The indictment describes this meeting US Person 1 had with MbZ.

On or about September 13, 2017, the defendant MATTHEW GRIMES sent a text message to the defendant RASHID SULTAN RASHID AL MALIK ALSHAHHI stating, “Heads up, [Emirati Official 1]is meeting with [a former United States goverment official (“U.S. Person 1), an individual whose identity is known to the Grand Jury on Friday. Please keep super confidential.” GRIMES furtheradvised ALSHAHHI that the defendant THOMAS JOSEPH BARRACK and GRIMES “worked hard to show [U.S Person 1] how strong of allies we are. Very hard… [BARRACK] spent lots of time.” AL SHAHHI then confirmed with GRIMES that U.S. Person | “was briefed by [BARRACK] a lot on [Emirati Official 1]and his vision.” GRIMES added that BARRACK “worked hard to show our friendship and alliance,” and that BARRACK had met with U.S. Person I many times in the past several weeks [about this meeting” with Emirati Official 1, in which BARRACK was “[c]hampioning [the] UAE.”

Here’s a contemporaneous report of that meeting.

On Monday, Bannon is scheduled to speak at a day-long conference in Washington organized by the Hudson Institute, a conservative think tank and paid for by multiple donors, entitled “Countering Violent Extremism: Qatar, Iran, and the Muslim Brotherhood.” The speech follows Bannon’s September meeting in the UAE with its crown prince, Sheikh Mohammed bin Zayed al-Nahyan. The two weren’t strangers: Bannon, Trump’s son-in-law Jared Kushner and ousted National Security Adviser Michael Flynn met with the crown prince at Trump Tower during the presidential transition in December. That meeting triggered controversy, as the UAE hadn’t notified the outgoing Obama administration about the visit as is customary.

The report goes on to report on Bannon’s sustained media campaign — the kind of thing you see in Foreign Agent indictments — attacking Emirate rival, Qatar.

Bannon, who through a spokesman declined to comment for this story, has said little publicly about Qatar. But Breitbart News, the far-right website he ran before going into the White House and where he is now once again ensconced, published more than 80 Qatar-related headlines since the blockade began, most of which were critical of the nation.

“Jihad-Friendly Qatar May Have Inspired Former Gitmo Detainees to Return to Terror,” declared a June 15 headline.

Another, 10 days later, read “Report: Qatari Ruling Family Importing Hezbollah Fighters for Protection.”

Bannon has said he is planning to start a global conference series through Breitbart. “We are in advance discussions about having Breitbart sponsor a major security conference in sub-Saharan Africa, the Persian Gulf, central Europe, and East Asia, in early to mid-2018,” he told Bloomberg recently.

This kind of media campaign is the stuff that can get you charged as an undisclosed foreign agent.

Bannon’s not the only one referred to as a not-yet charged co-conspirator. But he is clearly one of them.

The Evidence Needed for a Trump Prosecution

April 4, 2022/68 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

It would be easier to prosecute Trump for January 6 than Peter Navarro. I say that (in advance of today’s debate about referring Navarro and Dan Scavino for contempt) because it is far easier to tie Trump’s actions directly to the successful obstruction of the vote certification on January 6 than it would Navarro’s, and Navarro’s actions are fairly tangential to the proof that Trump’s actions met the elements of obstruction of the vote certification.

Months ago, I laid out how to prosecute Trump using the framework that DOJ has already used with hundreds of January 6 defendants. But in this post, I will show how much evidence DOJ has already collected proving the case against Trump by using the framework for Trump’s criminal exposure laid out by Judges Amit Mehta and David Carter, incorporating a key point made by Judge Reggie Walton.

In his opinion upholding the lawsuits against Trump, Amit Mehta found that it was plausible Trump conspired with the militias and also that he bore aid-and-abet liability for assaults at the Capitol (see this post and this post). He found that:

Trump and the militias jointly pursued an effort to disrupt the vote certification
Trump planned the unpermitted march to the Capitol
Trump encouraged the use of force and threats to thwart the certification from proceeding
Trump knew supporters would respond to his calls to come to DC and march on the Capitol
Trump called for collective action
Trump intended his “fight like hell” comment to be taken literally and rioters did take it literally
Trump ratified the riot

In his opinion finding that one email from John Eastman must be turned over to the January 6 Committee on a crime-fraud exception (see this post), Carter laid out the following proof that Trump obstructed the vote certification:

Trump tried to persuade Pence to disrupt the vote certification
He publicly appealed to Pence to do so
He called on his followers to walk to Congress to pressure Pence and Congress

Carter laid out this evidence that Trump had corrupt intent:

Proof that he had been told the vote fraud claims were false and his own request of Brad Raffensperger showed he knew he had lost
Trump had been told the Eastman’s plan was not legal

Carter laid out this evidence he had entered into a conspiracy:

Trump held lots of meetings to talk about plans to obstruct the vote count
Trump ratified Eastman’s plan in his Ellipse speech

To those two frameworks finding that Trump probably conspired to obstruct the vote certification, Judge Walton held that you cannot point to back-room plotting to get to the intentions of the actual rioters; you can only look at what the rioters themselves accessed, Trump’s public speech and Tweets (see this post).

This table (which is still very much a work in progress) lays out what evidence would be needed to prosecute Trump. The horizontal Elements of 1512(c)(2)/Relevant to Motive and Co-Conspirators sections show what is necessary given the elements of the offense as laid out by the judges and in DOJ filings, versus what might provide evidence of a broader conspiracy. The Must Have/Nice to Have columns show that for each kind of proof, there’s what is necessary and what would be really useful before indicting a former President.

In other words, the things in the yellow boxes are the things that would be necessary to show that Trump obstructed the vote certification. They basically amount to proof that things that Trump did brought the rioters to DC and to the Capitol and that he had the corrupt mens rea to charge with obstruction. I include there proof that Trump conspired with the militias, which I consider necessary because the Proud Boys, especially, took the bodies that Trump sent them and made those bodies tactically effective.

While prosecutors are still working on tying Roger Stone to both militias and tying Alex Jones and Ali Alexander into the crimes at the Capitol, much of the rest of this evidence has already been collected and rolled out in charging papers. For example, I showed some of the proof that rioters responded to Trump’s attacks on Pence by targeting their own attacks on Pence. There are a number of Trump comments that directly led hundreds of rioters to start making plans to come to DC, including arming themselves; NYT recently laid out the most central communication, a Tweet on December 19, 2020, though not only is that focus not new, it’s the tweet and response to which Arieh Kovler predicted the attack on the Capitol in real time.

A number of the other things you’d want to have before you charged Trump are available to DOJ:

Details of how the march to the Capitol happened and why it — and Ali Alexander’s permitted rallies at the Capitol — made a riot more likely
Explanations why Ellipse rally organizers balked at including people like Ali Alexander and Roger Stone
Testimony from Pence’s aides about how Trump pressured his Vice President in private

It is true that the testimony of several people — those involved in selling the Big Lie and Scavino’s coordination of the riot (including a particular focus on The Donald) — would be really useful. But that testimony is as important to proving that they were part of the conspiracy along with Trump.

Pat Cipollone’s tesitmony would be incredibly useful to that case, too. Normally, he could invoke privilege, but Trump already waived some of that privilege by sharing details about his conversations with Cipollone with Sean Hannity. If Cipollone did cooperate with DOJ, I don’t think he would leak that.

Similarly, the Relevant to Motive and Co-Conspirators rows — showing Trump’s coordination with Congress or his prior planning of it — would be really useful to have in prosecuting Trump. But ultimately, as Judge Walton held, what Trump did in private could not have influenced most of the rioters, because they never knew those details. As such, some of that information — precisely the kinds of stuff that TV lawyers say would be the first overt signs that Trump was a subject of the investigation — is more useful for including others in the conspiracy.

The most important of this evidence — communications from the December 18 meeting and comms during the day of the riot — are already in DOJ’s possession from Rudy’s seized phones, whether or not they obtained a warrant for that content yet.

Update: I’ve tweaked the horizontal headings on the table to clarify that the top half of the table stems from the elements of offense for 1512(c)(2), whereas the bottom half is clearly related and may help prove mens rea or incorporate other co-conspirators, but is not necessary (in my opinion) to meeting the elements of obstruction.

Whinger Verbs: To Investigate … To Prosecute … To Indict

March 26, 2022/139 Comments/in 2016 Presidential Election, 2020 Presidential Election, January 6 Insurrection, Mueller Probe /by emptywheel

Because Alvin Bragg chose not to prosecute Donald Trump, the whingers are out again complaining about Merrick Garland, who last I checked was an entirely different person.

I’ve copied the “Key January 6 posts” from my post showing what reporting on the January 6 investigation — rather than simply fear-mongering to rile up CNN viewers or your Patreon readers — really looks like below.

But for now I’d like to talk about the language the whingers — those complaining that Merrick Garland hasn’t shown people who aren’t looking what DOJ is doing. It’s telling.

Take this post from David Atkins that opines, accurately, that “Refusing to Prosecute Trump Is a Political Act,” but which stumbles in its sub-head — “The evidence is clear. It’s time to prosecute the former president, and Merrick Garland shouldn’t wait.” — and then completely collapses when it asserts that there are just two possible reasons why Merrick Garland has not “prosecuted” Trump.

But there is a deeper question as to why Attorney General Merrick Garland and the DOJ have not prosecuted Trump. No one at the department is talking on the record, but there are only two possible answers—neither of which is satisfactory.

It is possible that prosecutors do not believe there is enough evidence against Trump to convince a jury of his guilt. I’m not a lawyer, but this seems somewhat difficult to believe.

[snip]

The second possibility is that the Department of Justice hasn’t prosecuted Trump because of political pressure. Again, this is speculation. But if Garland is succumbing to either internal or external pressure to avoid charging Trump out of fears of civil conflict, or the appearance of political motivation, that would be a grave error—not prosecutorial discretion but prosecutorial dereliction. Allowing fears of violent reprisals to derail a prosecution would be a grave injustice.

Atkins is wrong about the reasons. I wrote here about why the ten acts of obstruction Mueller identified are almost universally misrepresented by whingers, in part because Billy Barr did real damage to those charges (as he did to other ongoing investigations), and in part because the ten acts that existed in March 2019 are not the acts of obstruction that exist today.

We know part of why Trump hasn’t been charged for political crimes: because Trump ensured the FEC remained dysfunctional and Republicans have voted not to pursue them (something that whingers might more productively spend their time pursuing).

It seems nutty to suggest that Trump should be “prosecuted” already for taking classified documents to Mar-a-Lago when that was referred just weeks ago. It’s also worth considering whether it would be easier to prosecute Trump for obstruction for these actions, tied to one of his other malfeasance, and then consider where investigations related to that malfeasance already exist.

Bizarrely, Atkins doesn’t consider it a possibility that it would take Merrick Garland’s DOJ more than 380 days to prosecute the former President. It took months to just wade through Stewart Rhodes’ Signal texts. It has taken 11 months, so far, to conduct a privilege review of Rudy’s phones (for which DOJ obtained a warrant on Lisa Monaco’s first day on the job). DOJ has six known cooperators in the Oath Keeper case (at least four with direct ties to Roger Stone) and one known cooperator in the Proud Boys case (and likely a bunch more we don’t know about). Particularly in the Oath Keeper investigation, DOJ has been rolling people up serially. But that process has taken longer because of COVID, discovery challenges, and the novelty of the crime.

But that goes to Atkins’ curious choice of the word “prosecute” here. I generally use the verb to refer to what happens after an indictment — the years long process of rebuffing frivolous legal challenges, but for an organized crime network, “prosecute” might also mean working your way up from people like militia members guarding your rat-fucker to the militia leaders planning with your rat-fucker to the rat-fucker to the crime boss.

I think what Atkins actually means, though, is “indict,” or “charge.” But his entire post betrays a fantasy where one can simply arrest a white collar criminal in the act after he has committed the act.

What whingers often say, though, is they want Garland to “investigate” Trump. Then they list a bunch of things — like cooperating witnesses or grand jury leaks or raids or indictments — that we’ve already seen, and insist we would see those things if there were an investigation but take from that that there’s not an investigation even though we see the things that they say we would see if there were an investigation.

Whinger brain confuses me sometimes.

The point, though, is that the language whingers use to describe what they imagine is Garland’s inaction or cowardice (none of these people have done the work to figure out whether that’s really the case), is designed to be impossible. That makes it necessarily an expression of helplessness, because their demand is actually that Trump be disappeared from the political scene tomorrow, and that’s hasn’t happened with multiple investigations implicating him, it sure as hell won’t happen if and when he is indicted, and it wouldn’t happen during a hypothetical extended period during which Trump is prosecuted.

Indeed, I’ve lost count of the number of people who tell me Bannon hasn’t been indicted, even though Bannon has been indicted. It’s just that he’s entitled to due process and in many ways being indicted provides him a way to play the victim.

There are multiple investigations implicating close Trump associates and the January 6 investigation is absolutely designed to incorporate Trump, if DOJ manages to continue building from the crime scene backwards. But that’s not actually what people want. None of these verbs — to investigate, to indict, to prosecute — are the ones that whingers are really hoping to see.

And the verbs they’re hoping to see — perhaps “neutralize” or “disappear” — are not ones that happen as part of due process.

And none of the due process verbs — “investigate,” “indict,” “prosecute” — are likely to work unless people at the same time think of things like “discredit.”